State Consumer Disputes Redressal Commission
Kundan Lal Filling Station vs The New India Assurance Co. Ltd. on 3 June, 2011
IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 03-06-2011 Complaint No. C-01/284 M/S KUNDAN LAL FILLING STATION - APPLICANT/COMPLAINANT AUTHORISED DEALER OF HINDUSTAN PETROLEUM CORPOROATION LTD., MRF LTD., Loni Road, Gokulpur, Delhi - 110094 Versus 1. THE NEW INDIA ASSURANCE CO. LTD., Divisional officer, 1/704, GT Road, Shahdara Delhi 110032 2. THE NEW INDIA ASSURANCE CO. LTD., Regional Office - II, Gulab Bhavan, 6- Bahadur Shah Zafar Marg, New Delhi - 110002 - RESPONDENTS/OPPOSITE PARTIES CORAM : MS KANWAL INDER - Presiding Member MS SALMA NOOR - Member 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? KANWAL INDER ORDER
1. The complainant has filed this application under Section 12 of the Consumer Protection Act alleging deficiency in service on the part of the OP because of non performance/ non compliance of the stipulated terms and conditions of the Insurance policy.
2. The same is being contested by the OPs who filed written statement to which the complainant filed rejoinder. Evidence has been led by way of affidavit and arguments have been addressed. We have gone through the record.
3. There is no dispute regarding the facts that the complainant was insured with the OP for almost three decades under various insurance coverage including cash in safe/cash at counter/cash in transit. Relevant policy in question covering cash-in-safe insurance bears no. 4632030002276 for the period from 10-07-1999 to 09-07-2000 which is Annexure A-6, as per which cash on counter safe was insured for Rs.3,50,000/- and cash on Cash Room Almirah was insured for Rs.5,50,000/-. In the night of 14-11-1999 a theft occurred in the premises of the complainant and cash amounting to Rs.9,61,578/- was reported to be stolen vide FIR No. 673/99 dated 15-11-1999 lodged with the Police Station and simultaneously report was lodged with the OP Insurance Company who deputed Surveyor Er.(Lt.Col) G.PS Bagga who visited and inspected the site of the theft and submitted survey report. The OP also deputed Mrs Sandhya Kameshwara, CA to look into the accounting system of the complainant who also submitted report that cash was stolen and verified about the theft having taken place of Rs.9,61,578/-, mentioning that maximum liability of cash at safe is Rs.5,50,000/-.
On 15-09-2000 the OP paid Rs.5,50,000/- to the complainant who issued receipt that he accepted it in full satisfaction and discharge of its claim under the Policy in question. Thereafter the complainant sent protest letter dated 31-10-2000 to the OP which according to the OP is an afterthought.
4. The complainant/insured has come up with this case alleging that part amount released by the OP was accepted under the protest and that it is entitled to claim the remaining amount as follows:-
i.
Claimed Amount Of Theft (Rs.9,61,578/-) Less Cheque Bearing No. 064478 Dated 15-09-2000 Drawn On Bank of India, GT Road, Shahdara for a sum of (Rs.5,50,000/-) Rs.
4,11,578/-
ii.
Interest @18% per annum from 15-11-1999 to 14-09-2001 Rs.
1,29,661/-
iii Loss of earning on account of short supply of funds Rs.
1,10,000/-
iv Loss due to mental torture, physical pain and agony Rs.
1,00,000/-
v Loss on account of interest paid of loans and advances.
Rs. 60,000/-
vi Loss on account of correspondence, clerkage,typing,postage, conveyances etc and manpower used Rs. 3,500/-
vii Legal Expense Rs. 55,000/-
Total amount of it comes to Rs. 8,69,739/-, further stating that the amount shall become double in terms of Policy and hence OP is liable to pay Rs.17,39,478/- .
5. In support of its claim for the entire amount of theft, the complainant is referring to his Proposal Form submitted in July 1997 for obtaining Insurance Policy mentioning Holiday Risk Cover in para 15. However, it is admitted case of the parties that in pursuance thereto the complainant was insured for the period 10-07-1997 to 09-07-1998 vide policy issued for the purpose but there is no such Proposal Form for the Policy in question. There is force in the submission of the Ld. Counsel for the OPs that the terms stated by the complainant in proposal form in July 1997, in pursuance to which policy for the year 1997-98 was issued, will not be relevant for the policy obtained for the period 1999-2000 and that anything mentioned by the complainant in the proposal form is only an offer, but for determining the rights and liabilities of the parties, the contract reached and executed in this connection is to be seen.
6. The complainant has submitted that subsequently the policy was being renewed and premium has been paid at the same rate and it was therefore implied that the insurance policies issued by the OP Company fully kept the Holiday risk covered throughout the policies period. However, this is duly rebutted by the Ld. Counsel for the OP who submitted that the complainant is relying on policy which was not in force at the time of alleged theft, the Holiday risk was not covered in the relevant policy and in fact Holiday Risk was got incorporated by insured with effect from 15-12-1999 i.e. after the theft. In this connection he has referred to the policy in question made available on record which does not make any mention of covering the Holiday Risk or doubling the amount of insurance. As per provision of the Sections 91 and 92 of the Indian Evidence Act, when the terms of contract have been reduced to form of a document, no evidence shall be given in proof of terms of such contract except the document itself. Hence that document alone is admissible to prove terms of the agreement.
7. The copy of the policy for the period in question filed on record, which is not disputed, alone is to be perused to find out terms of the contract and question of understood or implying any term from other policies does not arise.
8. Photocopy of the policy in question is Annexure -6 to the complaint. As per this document, the OP had undertaken the liability to insure cash in safe and in cash room almari to the extent of Rs.5,50,000/-. This written contract between the parties nowhere mentions that Holiday Risk is covered or that the OP will be liable to pay double of the amount of insurance in the circumstances as claimed. Hence no such term can be read which is not written therein. The complainant wants us to hold otherwise by calculating the rate at which the premium has been charged. That cannot be done. By referring to his calculation sheet, it cannot be held that double the amount should have been indicated covering the holiday risk, as that would amount to adding to the already written contract which is not permissible.
9. The submissions of the complainant regarding amount of premium paid and the sum insured in the earlier and the later polices purchased by him from the OP are not relevant for the period in question, terms regarding which have been reduced to writing and are available on record in form of policy which alone is to be seen to determine whether there is any deficiency in service on the part of the OP in complying with obligations undertaken therein.
10. It is further significant to note that despite being in possession of the policy, the complainant never raised any objection to terms of the contract reduced to writing in form of policy and never protested that the terms were not duly recorded in the policy. From the fact that after the theft in question, the complainant obtained another policy covering the Holiday Risk as well, shows that the complainant was aware that his policy in question did not cover that risk.
11. This complaint under the Consumer Protection Act has been filed alleging deficiency in service on the part of OP for not complying with the terms agreed between the parties, and the terms available on record are for reimbursement to the extent of Rs.5,5,000/- in case of theft of cash in cash room, and this amount of Rs.5,50,000/-stands already paid to the insured. Thus the terms of the contract have been complied with.
12. It is pertinent to note that on receipt of the insured amount, the complainant had issued a receipt recording full satisfaction and discharge without any protest. It is nowhere the case of the complainant that there was any coercion or force or threat or any other factor vitiating the validity of this document executed by the complainant. The complainant cannot wriggle out of this valid discharge given to the OP by subsequently sending a letter after one and a half month which is apparently an after-thought. Honble Supreme Court in case reported as AIR 1999 Supreme Court 3027 has ruled that Complaint by Insured who had executed discharge voucher in full satisfaction of his claim is tenable only if he proves that discharge voucher was obtained by fraud, coercion etc. There is no such plea or proof on record.
13. It may be mentioned that the complainant is claiming Rs.1,00,000/- on account of mental torture, physical pain and agony suffered which on the face of it is not tenable as the complainant is not a Natural Person. Similarly its claim for Rs.1,10,000/- on account of loss of earning, on account of short supply of funds and Rs.60,000/- as loss on account of interest paid on the loan and advances do not make any sense and in any case are remote. Since it has failed to establish that it is entitled to claim balance amount of theft, question of granting any interest thereon does not arise, besides the fact that this claim of interest on the balance sum is unfounded as there is no allegation of any agreement between the parties to pay interest. As the complainant has not been able to substantiate its claim, it is not entitled to any expenses.
14. For the reasons stated above, we find no merit in this complaint which is hereby dismissed.
15. Copy of this order be supplied to the parties free of costs and this file be consigned to Record room after needful is done.
(MS KANWAL INDER) PRESIDING MEMBER (MS SALMA NOOR) MEMBER av